G. WAYNE GIBBS vs. THEODORE J. BRODEUR & others.

SAMUEL APPELSTEIN & another, trustees, vs. BOSTON REDEVELOPMENT AUTHORITY.

359 Mass. 746

April 7, 1971

The trial was for the assessment of damages for the taking by the Boston Redevelopment Authority (Authority) of the petitioners' land and four apartment buildings. The jury returned a verdict for the petitioners in the sum of $57,000. Apparently, by stipulation, the only issue at the trial was the amount of damages to be awarded. The case is before us on the petitioners' exception to the denial of their motion for a new trial. The jury took a view of the property prior to hearing any testimony. At the trial one of the petitioners testified as to the income, certain repairs and "capital improvements" and stated that in his opinion the fair market value of the property at the time of the taking was $200,000. An "expert witness" for the petitioners testified that in his opinion the fair market value was $157,821. Another "expert witness" for the petitioners rendered an opinion as to the "fair and reasonable" rents of the various apartments. The Authority's "expert witness" testified that the fair market value of the property at the time of the taking was $70,000. The petitioners argue, in essence, that "[w]here a jury returns a verdict in a land damage case where the only issue is the amount of damage[s]" and the "verdict is substantially outside the range of the testimony as to value . . . [the] verdict should be set aside even . . . where the jury took a view." The petitioners

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in posing this question ignore testimony by one of the petitioners' experts and by the Authority's expert regarding income, expenses, vacancy allowance and capitalization of the four apartment buildings. The petitioners also disregard differences in testimony as to gross rental income. These differences, plus the differences in capitalization upon which the witnesses based their opinions presented to the jury questions of fact beyond the opinions of fair market value. In the circumstances of this case we cannot state that the trial judge abused his discretion in denying the motion.

Exceptions overruled.